“Government is not reason; it is not eloquent; it is force.” George Washington.

Violence is an inherent part of your job. When you step in front of any person on the street, you carry the full authority of the government behind you. When you lawfully tell someone to do or not do something against their will, it is a command in the name of the People who employ you. That person is required to reasonably comply. If you respond with objectively reasonable force based on everything you know at that moment about the suspect, the circumstances, and the suspect’s threatening behavior or attempt to flee, statistically, it is overwhelmingly likely that your quantum of force (the type, duration, and the likelihood of the injury of that force), will be reasonable and ultimately justified under the law. This includes shooting an imminent threat who dies or is injured as a result, even when it is later discovered that he was actually unarmed and you were mistaken about his actual threat. Absent intentional misconduct, the shooting of a suspect is almost always ruled to be criminally justified.

Although rarely it is not justified. And therein, as the Bard says, lies the rub.

A justifiable shooting…and then the problems begin…

When can this go awry? Police labor attorneys often advise officers, especially those involved in shootings, to refuse to give statements to criminal investigators. Unfortunately more officers are beginning to abide by this counsel. We’re seeing cases where an officer’s administratively coerced statement (per Garrity) is also being withheld from prosecutors rather than reviewed and later turned over to the DA. In fact, based on their labor attorneys’ direction, some officers are now refusing to provide public safety information to the first arriving supervisor without demanding they be compelled under Garrity to provide the statement or that they wait until legal representation is present on-scene.

When asked why they are counseling their police clients not to speak to first arriving supervisor or later to investigators, their attorneys often state something to the effect of, “Nothing bad can come from not talking to the police (or D.A.).” This is good advice if you were acting criminally. But you weren’t. You’re a cop. It is vital to examine the wisdom of this logic coming from a criminal defense attorney who normally represents people who are criminals and have been arrested for their criminal acts, but is now advising a police officer.

Cop or a Crook? Different Strategies

If you protected yourself (or another person) by reasonably responding to your reasonable perception of imminent deadly threat, you are the victim of an attempted murder. The law provides for the justifiable homicide or the justified shooting to defend against an imminent threat to safety by a suspect. The law permits you to make a reasonable mistake of fact, and it permits you to reasonably fire more rounds than were actually needed based on your perception of need and human factors limitations.

Immediately following a shooting, it would be legal suicide for a murder suspect to speak freely to the police. However, you are a cop, and you have vital public safety information regarding the crime scene(s), outstanding suspects, direction of shots, and the identification of evidence and witnesses. This time-sensitive critical albeit limited information not only serves the public, but it serves you as well. The crime scene will be protected, evidence preserved and collected, and witness statements recorded. Additionally, other officers and the public will be protected by providing outstanding suspect descriptions and direction and mode of travel. All of this will help to prove your version of this shooting, and direct the investigation toward the truth of the facts (which is good for you).

What possible good can come from a good guy not providing public safety information and some type of statement to investigators, either an interview, or, minimally, their coerced administrative statement, later to the prosecutor? In some cases, not providing it leads directly to the officer being prosecuted for what was an ultimately justifiable shooting but is now left to a criminal jury.

Put yourself into the District Attorney’s shoes:

There’s a police bullet(s) inside a dead guy and no explanation from the involved-officer about how it got there—and more importantly, why the officer put the bullet(s) into the dead guy.

There is a witness, often a friend or family member of the deceased, who claims the officer brutalized the decedent in some manner before callously and intentionally shooting him to death.

Since the evaluation of force is always from the officer’s perspective, absent that officer’s reasonable perception of the situation and the facts known to him at the time, as the District Attorney, you would have no choice other than to criminally file on the involved-officer. At the very least, the shooting may not be determined criminally justified, and may remain open indefinitely, hanging over the officer’s head for years.

What benefit comes from explaining your understanding of the events, whether through submitting to a criminal interview or, at least, providing your administratively coerced interview to the D.A.? Thoroughly articulating your perceptions and state of mind helps the D.A. arrive at the legal conclusion that your perception of imminent threat was reasonable and that any reasonable officer would have responded in the same manner. While it is always a good rule-of-thumb to invoke whenever Mirandized, there is generally no good reason not to comply with a Garrity compelled order to provide a statement that will be eventually provided to investigators.

Bottom Line

Most union attorneys are expert with labor contracts and employment law. Depend upon their advice in these matters is what you pay them for. They may also have some criminal defense experience or, at least, were taught about criminal defense in law school. But most are not well-versed in police post-force event needs. And criminal attorneys? Applying criminal defense logic to a reasonable police force response is improper and fundamentally inappropriate. The involved-officer is the victim of a violent crime who responded with lawful and objectively reasonable force. The officer is not the perpetrator and a crook’s defense strategy is incongruous with the officer’s role in the event.

The reasonableness of a police force response is judged from the perspective of the involved officer(s). Following a criminal attorney’s advice to “take the Fifth” doesn’t serve your needs as an officer who was a victim of a violent crime. Giving a limited public safety statement protects not only other officers and the public, it also begins the process of protecting yourself by pointing the investigation to the facts and evidence of the case. If Mirandized in any situation, the smart money says to invoke your right to remain silent. That said, there is absolutely no reason not to comply and to later provide a Garrity-compelled administrative statement. When interviewed, provide your own audio-recorder to have a record of your testimony. You and your attorney can review it and then formally release it to the D.A., allowing the criminal investigation to resolve.

You’re a cop, not a crook. You acted reasonably, and, even if it is later determined that you made an honest mistake, the outcome is almost universally positive. It’s probably a good idea not to follow the lawyer’s advice meant for the guilty. Tell your story when the timing is appropriate, explain fully why you believed your or someone’s safety was in jeopardy by the guy you shot, tell the truth as you remember it, and the let DA will do his or her job.

This article was published by the International Association of Law Enforcement Firearms Instructors in their magazine, "The Firearms Instructor,"Issue 54. Please note: revisions to this blog article have been made to reflect changes in the case law that was in force at the time of the original writing.

Police officers have been armed with firearms almost since the inception of law enforcement in the US. Since equipping officers with handguns, shotguns, submachineguns, and rifles, officers have pointed those weapons at suspects whom those officers believed to be a reasonable threat. It is inarguable that many shootings have been prevented as a result. Is that practice of pointing handguns at suspects without the present intent to immediately shoot wrong?

In the last few years, some well-known gun writers and police trainers have been urging officers, agencies, and law enforcement in general, to consider that unless the officer immediately fires, the pointing of a firearm at a suspect is a “violation” of safety rules. Pointing a gun, according to them, is therefore an inappropriate, unreasonable tactic. What is the basis of their beliefs? Range Safety Rule Number 2: “Never let the muzzle cover anything you are not willing to destroy.” This new idea will be referred as the “Rule 2 Negligence Standard.”

One trainer wrote that “while not a violation of law,” pointing a gun at a suspect and not shooting is a violation of the safety rules of gunhandling and should subject the officer to discipline by his agency. This action should be considered as “causing” the officer and agency to be civilly liable.

It is important to understand why these well-intentioned individuals are mistaken in their beliefs, and how to argue against the inevitable accusations by plaintiffs and the media (as well as those in your own agency) who will take up the chorus in claiming that any pointing of a firearm at a suspect without firing it is a violation that should be subject to sanction and/or judgment. These people are, in effect, attempting to create a new negligence standard for American law enforcement—one which is unnecessary and impractical.

As law enforcement trainers, there really are consequences to everything we do and say—often resulting in life-or-death. If this misunderstanding of range rules in the street is permitted to grow and become “normalized” as part of training, the courts will sooner or later incorporate it into their understanding of “proper” police work and prevent any officer from muzzling someone without shooting. From that moment on, any officer who points his or her weapon at a suspect and fails to fire will likely be guilty of excessive force. The result? More officers hesitating to draw guns, and more police shootings with suspects who thought they could beat the cop to the draw. More suspects will be shot with a corresponding drastic increase in liability exposure. And more officers are going to be shot down.

When addressing an issue with a “new interpretation” of an existing concept, care must be taken to extrapolate the possible consequences. While well-intentioned, this concept has not been well thought out. The old adage applies—be careful what you wish for, you may get it.

Bottom line: When an officer has a reasonable belief that a suspect or situation might be dangerous or threatening, he or she may presently point a firearm at a suspect in order to ensure their safety. It is lawful to do so. And it is NOT in any way a safety violation of “range” safety rules to point a gun at a suspect(s) who may be armed, violent, or outnumber officers.

Tactical Reminder: As I pointed out in an article entitled, “The Proper Weapon Hold on a Suspect” (The Police Marksman, November/December 1993), the proper method of holding a suspect at gunpoint is to keep the weapon pointed at the suspect’s waistband. This permits observation of the suspect’s waistband and hands, allowing the officer to see threat cues, predatory positioning, and aggressive movement while still “on-target.”

POINTING A GUN CAN BE EXCESSIVE FORCE

An officer can now be subject to discipline and liability by pointing his weapon at an individual or group when the officer is unable to articulate the threat he or she felt existed at the time. In the federal court's denial for a motion for summary judgment, the court stated that pointing a firearm (in this case, a submachinegun) at a subject is “excessive force” when there is no legal reason to do so is Baird v. Renbarger (7th Cir., 576 F.3d 346, January, 2010). From the facts of the case it would be apparent to any reasonable officer that pointing a firearm at a person in this situation might be unreasonable:

An officer who was verifying a VIN during a visit to an auto shop believed the VIN had been tampered with.

Returning the next day with a search warrant, the officer pointed a subgun at the occupants of the business, and forced them at gunpoint to sit on the floor together.

The officer then detained the occupants of adjacent shops at gunpoint, including a group of Amish men, requiring them to sit with the others who were detained.

The federal district court determined that it was “objectively unreasonable” in these circumstances to aim a submachinegun at wholly compliant and non-threatening subjects. The 7th Circuit Court of Appeals used the major factors within the totality of the facts known to the officer at the time of Graham v. Connor (1989):

The severity of the crime at issue: The crime of altering a VIN is one that is not associated with violence. The court remarked, “…this is a far cry from crimes that contain the use of force as an element, crimes involving the possession of illegal weapons, or drug crimes, all of which are associated with violence.”

The threat of the subject to officers or others: This officer had been to the auto shop the day before, but articulated no belief that the occupants were threatening in any way. On the day of the warrant service, all immediately complied with his and other officers’ orders.

The active resistance or attempt to flee: None of the detained subjects resisted at all or attempted to escape.

Other courts have weighed in on this subject, ruling that an officer pointing a gun at a suspect absent indications of threat is excessive force, including the 9th Circuit in Robinson v. County of Solano (2002) and 3rd Circuit in Baker v. Monroe Township (2005). Some of the facts in these and other cases leading to a finding of excessive force or summary judgment motion(s) are:

While investigating a crime of illegally shooting dogs, officers pointed a gun at a handcuffed, searched prisoner for an extended period of time.

Detaining an infant/child/children at gunpoint.

Pointing a gun at the head of an elderly man after he had been handcuffed.

Generally it is not justified to point any firearm at a compliant individual when the circumstances are not threatening. Even if the circumstances were threatening a few moments ago, as soon as that changes, officers must reflect those changes in their behavior and stop pointing guns at compliant or restrained people.

Bottom line: Point a firearm at a person only when you can articulate your reasonable perception of danger this person poses to you or others, whether it is through their acts or their connection to the dangerous circumstances in which you find yourself. Failing to be able to explain why you needed to point your weapon at someone can create huge problems for you.

Note: After the submission of this article, the juries in Baird and in Robinson decided in favor of the officers, their verdicts were that there was no excessive force in these cases. That said, the federal circuits are weighing in, and officers should take note that pointing firearms at a person whom the officer does not reasonably perceive as threatening is considered to be excessive force.

THE COURTS SUPPORT OFFICERS POINTING GUNS AT PEOPLE WHEN JUSTIFIED

The US Supreme Court has always held that it is permissible for the police to point guns at people suspected of violent or weapon-related crimes. This includes those who are suspected of a non-violent crime but who are known to have carried weapons in the past. Federal Circuit Courts and Courts of Appeal routinely have ruled that officers may hold people at gunpoint when the circumstances reasonably create the fear of violence. Even the 9th Circuit in Duran v. City of Maywood (2002) stated that two officers moving toward the location of a shots-fired call with their handguns drawn did not increase the likelihood of a shooting.

When an officer reasonably believes the circumstances could be possibly threatening or violent, especially those involving drugs, weapons, or violent individuals, the drawing and pointing of a weapon is wholly permitted.

TOOLS OF INTIMIDATION?

Proponents of this “Rule 2 Negligence Standard” argue that the police firearm is not intended to be “tool of intimidation.” I would argue that every police tool, from “command presence” to OC Spray, the Taser, baton, Police Service Dog, and every firearm is a tool of intimidation. The very presence of a police officer who is confronting a criminal suspect is inherently intimidating. The uniform, bearing, and the weapons the officer carries are designed to be so.

The US Supreme Court in Graham supports this concept of intimidation of suspects, stating, “The right to make an arrest or investigatory stop necessarily carries with it the right to use some form of physical coercion or threat thereof to effect it” (emphasis added). The Court recognizes that intimidation is part of law enforcement. It is hard to argue that there is a higher level of intimidation other than directing a muzzle directly at a person and telling them to stop their behavior or they will be shot. The realization of their mortal vulnerability as well as the officers’ intent causes most suspects to comply to avert a shooting.

VIOLATING “RANGE RULES”?

There can be little question that a firearm is a dangerous tool. It is designed and intended to harm a living being in defense of life (or hunting for meat). Its carry and display must be regulated and training imposed upon officers in order to reasonably minimize the chance for tragedy by preventing unintentional discharges.

Range rules were developed through hard won wisdom. A moment’s inattention or distraction and someone is needlessly injured or killed. As the range rules have been promulgated and enforced, injuries from firearms accidents have steadily decreased. Firing ranges are generally safe places to be as a result.

The National Rifle Association’s “Gun Safety Rules” include only three parts: 1. Always keep the gun pointed in a safe direction; 2. Always keep your finger off the trigger until ready to shoot; 3. Always keep the gun unloaded until ready to use. This is a good start for gun safety, especially on a cold range where weapons remain unloaded until directed.

The late Jeff Cooper of the American Pistol Institute at Gunsite Ranch in Arizona developed a version of these rules, one that many officers have been trained in. The four so-called “inviolate” Firearms Safety Rules are: 1. All guns are always loaded; 2. Never let the muzzle cover anything you are not willing to destroy; 3. Keep your finger off the trigger until your sights are on the target; 4. Always be sure of your target. This article is not intended to discuss the efficacy of these range rules as they are generally stated (which should certainly be up for discussion). Rather, the application and intention of Safety Rule Number Two will be discussed.

The trainers and writers who are promulgating the “never point a firearm at a suspect unless you intend to shoot” negligence standard explain that while it is legal to point a firearm at a person in limited cases, it is a “violation” of the safety rules. It is therefore unsafe and should be prohibited. They agree that having your handgun (or shoulder weapon) in your hands early is a good thing in possibly dangerous circumstances (because, as we all know, the fastest drawn gun is the one that is already in your hand). They argue the in-hand weapon should be held in a low-ready or off the line of the suspect until the decision to shoot is made. Additionally they note that there is little difference in reaction-response times between a properly positioned weapon that is held off-target and one that is held on-target. This, they reason, will reduce or eliminate the possibility of injury due to unintentional discharge and resulting civil liability.

While some of their reasoning for why they believe an officer should not point guns at people they do not intend to shoot may be useful in limiting liability, the purpose of an officer possessing a firearm is not about civil liability prevention. It is rather about defense of life and creating compliance.

Defense of life. The main purpose for carrying a firearm is to shoot another person to save life. Stopping a suspect’s imminent or actual threat to life by shooting bullets through their body is the only reliable and proven method of quickly stopping life-threatening behavior. Shooting a person necessarily requires the muzzle to be pointed at them. Proponents of the “Rule 2 Negligence Standard” are not against officers shooting people who earn getting shot. Their concerns are how and when that muzzle is brought on target. That is the center of this discussion.

Creating Compliance. Many, if not a universal experience, officers have had the experience of a non-compliant suspect in a dangerous situation, or possibly armed, suddenly become compliant when confronted by the muzzle of a police weapon. Almost all people understand there is a fine line between a gun being pointed at you and that gun being fired at you.

What creates compliance when muzzling a suspect? The fear of being shot. The presence of a handgun in police confrontations is universal—officers carry handguns at all times. A handgun in an officer’s hand is an increase in the degree of the threat to the suspect. The suspect’s perception of the threat posed by an officer’s handgun muzzle pointing directly at him is dramatic. A pistol in-hand is cautionary, a firearm pointing at you is a whole other universe of reality—that’s imminent and real. Confrontations with an armed suspect results in compliance because that suspect knows that if he tries to outdraw a handgun pointing at him, he’ll lose. Simply put, many, many shootings are prevented because officers muzzle suspects.

SO HOW DO WE TRAIN IT OUT OF COPS?

So let’s say we do adopt the “Rule 2 Negligence Standard” and declare that pointing a gun without shooting to be a violation of policy, tactics, safety, and, eventually, law. What will the result be?

Slower response to deadly threats. Most will agree that officers today are much slower to respond with force than their forbearers. This reflects our society at this time. It must be considered that by adopting the “Rule 2 Negligence Standard,” officers will likely be even slower to draw and fire their weapons than they are today. Of course, there will be an attendant increase in shootings, and the resultant increase in both suspect and officer injuries and death.

increased allegations of misconduct. Due to more sophisticated offenders who already take advantage of the system, the allegations (both true and false) of “the officer pointed his weapon at me” will increase. This will be especially true in both criminal and civil courts. The “he said/she said” nature of many of these complaints will cast a pall across law enforcement, causing many to leave their handguns in their holsters until the last possible moment before a shooting for fear of being falsely accused of brandishing.

A natural response to great threat. In highly threatening circumstances, officers will point their guns at a suspect due to their own fear and desire to prevent a shooting. Many officers, if not most, have had the experience of facing a suspect whose actions were so intense and threatening that the officer could have legally shot him but didn’t for one reason or another. Universally, these incidents were emotionally startling in their intensity and focus. Having a weapon in one’s hand and, if given time, NOT threatening a dangerous person with it before a shooting is not natural. It would be a very difficult training issue and a behavior that could not be prevented.

Pointing a firearm at a suspect in a dangerous, possibly imminently threatening situation is something that we cannot “train out of officers.”

Hard-wired response. It is a hard-wired human behavior to throw our hands and arms forward and up between that which we perceive as suddenly threatening and ourselves when startled. This action has been termed the “startle reflex.”

Posturing to prevent violence. Humans who feel threatened but are not yet engaged in combat, tend to “posture” in an attempt to intimidate their adversary. They point the most dangerous weapon they have at that other person before blows are exchanged in hopes that the other person will become discouraged and demoralized, and desist or submit. This intimidation is designed to avoid physical conflict. When posturing, unarmed combatants will point their fingers or shake their fists. If armed with a knife, it will be displayed between the two parties and pointed at the other person as a warning. A club will be ominously swung in the direction of threat, or struck against an object as an example of the consequences of engaging in physical conflict. Guns are pointed as a display of warning and threat.

A threat of last resort. Pointing a gun is the highest level of threat—short of actually shooting the suspect—an officer has. A pointed gun and a yelling officer are wholly intended to transmit the message that “There is nothing left except to shoot you, so comply with my orders.”

How is something this instinctive to be trained out of an officer? It can’t be. The result of the “Rule 2 Negligence Standard” requirements will be that many officers will be disciplined and possibly lose their jobs as a result of their natural and instinctive response to their perception of great danger. Citizen complaints will increase. False accusations of officers brandishing will become the norm by criminal defendants and civil plaintiffs. Officers will be forced to defend the negative—arguing that something did not occur. The civil liability exposure for “excessive force” will dramatically increase, resulting in more lawsuits and increased litigation costs, settlements, and adverse judgments.

REASONABLY MUZZLING A SUSPECT IS SIMPLY NOT A “VIOLATION”

There is no “violation” of range safety rules when pointing a weapon at a suspect when the situation is sufficiently threatening. Rule #2 states: “Never let the muzzle cover anything you are not willing to destroy.” It says, “…willing to destroy,” not going to destroy. This is a paper target rule when taken literally.

A police officer who muzzles a suspect, as discussed, is conveying the willingness to shoot that person. However, that officer is communicating to that individual that he simply has not made the decision to shoot him yet, but is very, very close. The decision as to whether or not the suspect will be shot is now up to the suspect and his actions.

The law as interpreted by the courts permits officers to point guns at suspects in circumstances that justify it. An officer who points a gun at a suspect is implicitly telling that suspect to change his behavior immediately or he’ll be shot. As Clint Smith says, “The muzzle of a .45 pretty much means ‘go away’ in any language.”

The “Rule 2 Negligence Standard” is a misunderstanding of the rules intended to increase range safety and safer gun-handling. Officers in the street work under a different context. They not only shoot to protect life, but attempt to protect life by reasonably intimidating a threatening suspect by pointing a weapon at him.

By adopting the “Rule 2 Negligence Standard,” it will likely be sooner rather than later that officers will be prohibited by the courts from employing this important safety practice. Yes, unintentional discharges occur, but not at a greater frequency than before. And when they happen, agencies will settle with the plaintiff to compensate for the loss. But the shooting of more suspects who attempt to fight their way out of an arrest when confronted by an officer who is hamstrung in their last-ditch ability to convince a suspect that the only way out without risking serious injury or death is to comply will be out of proportion to the very limited number of injuries from unintentional discharges. Sometimes pointing a gun at a suspect is the only chance an officer has to prevent a shooting.

Adopting this misinterpretation of “Safety Rule 2” will increase civil liability beyond anything now seen from the few unintentional discharges that occur annually in the US. Many more suspects will be shot, injured, and killed as a result of its adoption. More to the point will be the needless loss of police officers in the line of duty because of a misinterpretation of something that was originally designed to keep them and all gun owners safer.

Instructors and administrators: Let’s really think about the very real consequences of this before incorporating it into our legal and tactical doctrine.

You're a commander within a police agency, having the experience, education, and the effort to have achieved your rank. You have an important job, and the decisions you make affect not only the environment of the police department your officers work in, but also the lives of the citizens you serve. If you were again a patrol officer and were asked to follow orders and to accept discipline from a command staff officer, would the following make any difference in the quality of your attitude and decision-making at work?

A major police agency changes it firearms qualification policy, ending the requirement for any command staff officer (Deputy Chief and above) to qualify, even though each is an armed commissioned officer.

In another large agency, the command staff has a qualification day separate from that of their officers. That way, commanders and the Chief are “not embarrassed” by poor shooting scores.

In defensive tactics training, seeing anyone above the rank of sergeant is rare, even though lieutenants and above are responsible for evaluating their officer’s force response.

In one agency with 180+ sworn officers, no command staff officer above the rank of lieutenant has ever attended EVOC and PIT training, even though lieutenants and above evaluate their officer’s pursuit actions and PIT techniques.

Command officers designate the closest parking spaces to the station entrance for their convenience while citing, “Rank has its privileges," requiring first responder officers to run a longer distance to run to their patrol cars when responding from the station parking lot.

Command officers rarely attend training subjects involving officer safety and tactical response, even though they are responsible for evaluating their officer’s tactics and safety responses.

Chief law enforcement executives and their command staff occupy a unique niche in this world. They are responsible for managing multi-million dollar budgets in a high profile, high liability business. They are also police officers who are responsible for enforcing the law and leading officers in their public safety duties. Command officers cannot be simple “cops” because of their management responsibilities—time and their position simply cannot support the time away from the office and the day-to-day workload that comes with it by answering calls, making arrests, and the resulting court testimony that follows.

Conversely, police officers are not typical “workers.” Because of the nature of the job, police work is a necessarily curious mix of public servant and warrior. Officers must treat the citizens they serve with professional respect, providing a protective and investigative resource to the community and individuals at times of great stress and duress. At the same time, officers must approach their duties tactically, and be prepared for life-and-death struggles when responding to any call for service. It is a rare officer who makes it through a career without life-and-death decisions being forced upon him or her. The fundamental warrior quality needed within law enforcement cannot be denied. It is the balance of service and warrior that makes the job of a police officer unique.

Because of this warrior quality, officers require a unique style of management. That style has a direct bearing on the command staff officers’ effectiveness as a leader and manager, and the agency’s officers’ morale. The command officer’s bearing and manner of approach to that important job has a direct effect on the quality of the officers’ work product in serving the public.

Officers expect executive and command staff members to “lead” them. The culture of policing resists “management” and the latest seminar “technique.” This culture embraces “leadership.” It is safe to say that any command officer who considers him- or herself solely to be a “manager” is probably less than successful at his or her job, and may be a dismaying failure. Instead, those who command the respect of the officers they serve are those command officers are those who are “leaders.”

Think about the qualities of leadership that you admire. Volumes have been produced about what those qualities are and what it takes to be a leader. One important quality is courage--standing up for what is right, not what is politically correct or good for you. An unbending sense of integrity--walking your talk, and not finding the easy way out of a problem--is another. Still another is the sense of service to others, especially to subordinates--instead of thinking that only you have all the answers and are in your position because you are "anointed of God." Perhaps the most important quality is that of understanding that rank does NOT have privilege, but rather responsibility. Looking out for the welfare of your cops, holding them to high but reasonable standards of conduct, and rewarding good honest cop work regardless of the outcome, despite public or media sentiment and outcry, will create a police department that will retain good cops with high morale and good policing ethics.

Questions of leadership are often centered around the relevance of command’s knowledge of their officers’ training and day-to-day tasks. It is about making an effort and setting an example. Leadership involves putting your officers first, and pulling them forward, rather than pushing them from behind or crushing them from above. It is about personal and professional accountability. While a command officer may have pushed a patrol car fifteen or more years ago, the street and the equipment have changed in the last year. It’s different than it was ten or fifteen years ago. Suspects are more aggressive and challenging, while technology adds to the attention demands of officers. Your officers know this, and they know who the leaders are in their agency who have current job knowledge. They also know who are simply managers and who covet rank and career more than responsibility. In fine, officers believe that leaders understand, and managers have no clue.

One way for a command officer to demonstrate a level of commitment and understanding to officers—and something that every officer looks for in their command staff—is having current knowledge of their day-to-day job tasks and a sense of understanding of what they face on the street. Command is not be expected to do everything required of a young cop, but command officers should understand and be intimately familiar with what their officers deal with daily.

There is one area of police work where gaining respect while maintaining the relevancy every command officer needs is readily available: attending your own agency’s training. It means putting yourself on the line in front of your officers, doing what they do, learning what they are taught, sharing your experience, and learning about theirs—and them as individuals rather than as personnel evaluations. While safety and skills training may not seem to be “relevant” to your daily job needs, it is vital to your own credibility as well as the currency of your job knowledge. It may well be a significant part of your ability to provide meaningful direction to your officers as well as reasonably evaluate their job actions.

ATTENDING TRAINING

Anyone familiar with any administrator’s job knows the volume of your workload. Any single day away from the desk means you are a day behind stacks of papers and missed meetings. At the same time, your effectiveness at your rank lies within your ability to command officers’ respect—they don’t need to like you, but they should respect you because of your integrity and devotion to duty. Respect is borne of shared experiences and the knowledge that the other person is willing to put themselves on the line for you. Even a couple of hours in the classroom, range, mat room, training area, or EVOC track will pay huge dividends to any command officer who makes a consistent attempt.

What message is sent to the line officers when command officers (regardless of their administrative skills) are no longer expected to qualify with their weapons? Minimally, your officers may believe:

Command is incompetent. Incompetence in any profession is fatal, but none more so than in policing.

There is a double-standard working within the agency, with an underlying problems of a sense of “unfairness.” Officers tend to have a well-defined sense of justice and belief in fair play. This perception of a double-standard can only foster and exacerbate a labor-versus-management atmosphere where confrontation is the norm and not the exception.

Any negative evaluation of an officer-involved shooting is immediately suspect. The belief, right or wrong is, after all, “they shoot so poorly they can’t qualify with us, so what gives them the right to judge us?”

All discipline for low or failing firearms qualification scores is hypocritical.

Defensive tactics/use of force is the most commonly employed “trained” skill an officer is likely to use on a daily basis. It is not uncommon for an officer to respond with force, causing some type of injury to the resisting or assaultive suspect—this can be expected, on average, three to five times per year per officer. This force response can generate a complaint. The officer becomes the subject of an investigation. While not common, is also not rare that this investigation results in an outraged administrator demanding the officer be disciplined for something the officer was trained to do in that situation by the agency’s own DT instructors. Huge credibility problems result and anger in the ranks increases, undermining any command officer’s effectiveness.

THE SOLUTION?

A possible solution to this problem of a perceived problem of a lack of leadership is simple: Lead, don’t manage. Share their experiences as much as your schedule permits.

Share your officers’ training. Make it a point of attending training, especially those training courses involving core police skills: defensive tactics, shooting, driving, and arrest & control, officer safety. While you may have past injuries that limit or prevent your fully participating, no one but the most sour officer will hold it against you for not wrestling around on the floor with the youngsters. But you will get a huge measure of respect for just showing up and “flying the flag” of command. Participate where you can, even if your skills are inferior or you have to struggle. It is better to be known as someone who is not well skilled but tries, than a hypocrite or “non-hacker” who doesn’t even show up. Even if you sit in a chair, or discuss the training points with your officers while on break, you get credit for being there and learning what your officers are being taught. They get to know you, and, more importantly, you get to know them. Personal interconnection counts most during high pressure situations where lives are at stake and trust in command’s judgment determines the outcome of an incident. That is Team Building 101, and is worth a thousand very expensive team building “retreats.” For example, a 58-year old female Commander (3rd in command in a 200 officer agency) routinely attended defensive tactics training. She worked where she could despite injuries and her age, she got sweaty with the troops, and exhibited a willingness to risk failing while making the effort to succeed. No one in that agency thought she was skilled. She also fired her qualification scores every shoot with a different groups so she could fly the flag at the range as well. And every cop in that agency gave her credit for her effort to put herself in front of them and making the effort.

Put yourself on the line in testing in front of the troops. A huge credibility factor for every officer is whether or not a command officer will risk his ego in front of the officers. Command officers who avoid firearms qualification shoots, or suddenly disappear when written examinations are required in training undermine their credibility. While every officer would love his or her chief to be “super-cop,” the reality is that they want their command officers to demonstrate their willingness to put it on the line, just like the officers do every shift. It is part of the camaraderie that develops between humans who share the same experience and risk. While the risk taken during testing is not the same as sharing the same small piece of cover in a firefight, it is still a risking of ego and stature, and that counts in the warrior mind of officers.

If your skills are truly unsatisfactory in any area, and this is the cause of your avoiding training, there is nothing wrong with requesting assistance from your training staff. You are a police officer, and agency trainers are tasked with assisting every officer to meet standards. Attend the training, and then get extra training time in—this often only means a few extra hours spread over time. The important thing is to be out there for your officers, rather than being perceived as your being for you only and the “privileges” of your rank.

CONCLUSION

It can be easily argued that training is a vital aspect of law enforcement. It can also be argued that every officer regardless of rank benefits from attendance. When an officer fails to participate in training, it is likely that officer will perform at less than an optimum level. When command staff consistently fails to attend, it is likely that command officer will fail in leading their officers, will have labor problems, and all decisions relating to discipline or tactical resolution of incidents will be seen as suspect—or be met with near-rebellion.

Attendance at all training involving high-liability activities and skill development should be mandatory for all command officers. Ideally, at least one command officer will be present and participate in every class for a significant portion of the training during the multiple iterations required to cover an entire agency. In this manner, the command staff officer better knows his or her officers, and, more importantly, his officers know their commander. Each is more familiar and less foreign to the other.

While this action alone will never create a “beloved” leader, that shouldn’t be the goal of any administrator. A leader, because of the position, is not necessarily popular, due to making the unpopular decisions that all commanders must make from time to time. But he is more highly respected because he takes the time to show his officers that they and their training matter—and he understands that rank does not have privileges. Instead, with rank comes a greater responsibility to the officers he or she serves.

Changing requirements for, or segregating command staff during training is a corruption of power and privilege. If command personnel are police officers with police powers, they are legally required to be trained, and should attend the same training their officers do. Yes, they are extremely busy. But a vital part of their job is maintaining their job skills and demonstrating leadership. If a commander is embarrassed by his or her scores, then practice should be undertaken in order to meet standards. If you are older and the miles of life prevent you from participating in the physical training, then be an interested observer and participate where you can--show a willingness to train and learn, and share your experience.

It is a question of leadership. If you are a command officer, be the leader you wanted when you were an officer. Take those responsibilities seriously enough to maintain your skills and currency with what your officers are being taught. This is a simple step that will pay huge dividends.

All of the latest studies on force response by police scream the fact that officers respond with force sparingly. Over 97% of the time in an arrest, suspect behavior requires no force response by the arresting officer. When an offender forces the situation, the majority of the time it is a low-level resistance involving muscular effort by everyone—a lot of negotiating by the suspect, and repeated commands by the officer(s). When an officer is required by the offender to resort to force to control resistance or defend against assault, how should it be judged by the agency?

The evaluation of any force response should be fairly straight forward—the courts have provided very workable and, frankly, very sympathetic formulas for determining the reasonableness of an officer’s force employment. Many agencies, however, muddy the waters in their test for reasonableness by using the invented standard of whether or not the officer employed “approved techniques.” This unnecessary component of determining whether or not an officer achieved proper conduct creates liability for the officer and agency where there was none.

Background

A lot of money and time is spent training officers in defensive tactics and suspect control methods. Whether the agency is forced to use the system endorsed by its particular state, or is free to choose the system to be presented, every agency settles upon a system or philosophy in which their officers are trained. In many cases, the agency chooses a vendor to “certify” the agency’s instructional staff.

Unfortunately, in many instances, these vendors dictate to the agency what the agency’s standards shall be. They use the fear of the “Double-L of Law Enforcement ” (“litigation” and “liability”) to effectively coerce the agency into continuing to use their training system (translated: transfer your agency's training budget to the vendor). Anyone who has ever heard any of the following phrases has experienced this type of blackmail:

“If you don’t use our techniques as we train you, you are on your own when you get sued…”

“If your instructors do not re-certify regularly, we will de-certify them as instructors…”

“If you use our techniques, we will testify for you. If you don’t, we cannot assist you…”

“The use of any techniques other than the ones we teach, or if employed differently than we require, will create liability.”

As a result, some agencies go so far as to create a policy or practice of requiring each officer to employ only those “approved-techniques” in which the agency trained them. Generally turning a blind eye to what their officers actually do on a day-to-day basis, these agencies reserve the right to judge whether or not the technique the officer used was proper. This artificial standard is based not only on the circumstances at the time, but also is also judged on whether or not it was applied in the middle of a dangerous fight as it was trained and in an "approved" manner.

In these agencies, when a subject is injured by an officer using a “non-approved technique or method,” discipline is handed down—an officer who was simply attempting to get the job done reasonably has his/her career damaged. Lawyers become involved and settlements are made. And then every cop goes back to what cops do: arresting bad guys, improvising tactically, and getting by as best they can until someone gets hurt the next time, with continuing findings of policy violations and all of the familiar aftermath.

These policy violations and resulting liability are not a product of violating the law or a person’s rights. Instead, this creation of liability is an artificial policy construct dictated by vendors or misguided policy makers that state, “Officers may perform only ‘trained and approved techniques and tactics.’” Training has been officially deemed by the agency’s admin to be thoroughly comprehensive and sufficient for all circumstances. The consequence of this is that failure to use the expected techniques and methods is a violation of policy, and while the force may have been reasonable and lawful, liability was created nevertheless by the written standard of performing only those techniques and tactics as trained.

Important Questions

It is important that a discussion take place within law enforcement over who determines what a force response can look like, and how that force will be judged.

Is an officer’s force response to be judged on the techniques he or she employs in the field?

Is it true that if the officer fails to employ a technique as the vendor trained it, or utilizes an alternative, the officer and agency is liable for that use of force?

What if an officer uses an “unapproved” method? Is there automatic liability?

Evaluating Police Force in the U.S.

In discussing any aspect of using force, we must explore the basis of force, how it is evaluated, and where true liability exists. The basic framework of any lawful force response by police, since 1983, rests in the Fourth Amendment of the US Constitution. In US v. Place, 462 US 696 (1983), the court provided a balancing test to assist in determining the reasonableness of a police intrusion during a seizure.

This was expanded in 2007 by the US Supreme Court in Scott v. Harris, 127 S.Ct. 1769 (2007). Officers are required to weigh the likelihood of injury or death to the suspect balanced against the threat of the suspect as reasonably perceived by the officer at the time of the force response. In Graham v. Connor, 490 U. S. 386 (1989) the US Supreme Court ruled that all police use of force is governed by the objective reasonableness doctrine, and is based upon a reasonable officer standard. The only consideration when evaluating any police force response is, if in the totality of the circumstances known to the officer at the time of the force employment, would another officer with like or similar training and experience, given like or similar circumstance, have done the same thing or have made similar judgments?

There is no mention of specific techniques or using “trained techniques” in any of these force decisions. The question is simply asked, “Was the officer’s response objectively reasonable based on what he or she knew at the time?” If yes, there is no liability. If no, the plaintiff deserves to be compensated for their unreasonably received injury.

Most state laws require the same standard of reasonableness. For the balance, these states require officers to use “necessary” force. This is often defined as “force for which no reasonable alternative apparently existed and was reasonable to the situation. Even with this more restrictive state law, there is no requirement to adhere to a specific technical standard.

In both jurisdictions (state and federal), it is up to the officer to articulate the circumstances he or she perceived and responded to. Even though the officer acted properly in the field, there can still be huge liability if that officer fails to fully articulate and document his or her reasonable beliefs. There are no adverse judgments on the books stating the officer failed to employ some defensive tactics technique properly. There are, however, myriad cases where an officer failed to prove his or her reasonable conduct in light of the totality of the circumstances known to him at the time. This is the sole source of liability to officers and their agencies.

The law does not evaluate the effectiveness of any particular force method, unless it has a bearing on the circumstances. A shooting will be judged on whether or not a bullet hitting the plaintiff was justified by the circumstances, not on which stance or brand or style of weapon was used. If deadly force is justified by the circumstances, it can be resolved by shooting, stabbing, choking, driving over, or even dropping a safe from the twentieth floor on the head of the person creating that imminent threat. Deadly force is deadly force, and how you get there doesn’t matter. In a case where limb manipulations were used with resulting injuries, no one in the jury at the end of trial is holding up a sign giving a score regarding how well the technique was performed (Juror #1, 8.8; Juror #2, 9.1; the French Juror, 3.1…). Instead, the juror will simply be asked, was the actual force with which the officer responded reasonable given the circumstances? Their verdict will generally reflect the defendant officer’s ability to articulate his justification of his actions, combined with the documentation of the evidence.

According to the law, there is plainly no liability to using or not using any particular technique or method your officer has been trained to use as long as it was reasonable for the circumstances known to the officer at the time.

Responding With an "Unapproved" or Improvised Alternative

The liability engendered by using an alternative technique is created only when the agency promulgates a policy requiring only “approved techniques” be employed by their officers. Rather than limiting liability, this type of policy instead actually increases the possible exposure to the agency.

The reality of any type of force response skills system requiring officers to “properly” apply only its techniques and no other is that no training is capable of answering all of the threats and problems an officer faces in the real world of policing. Officers are constantly forced by circumstance presented to them by suspects to improvise, and training must reflect this need to problem-solve. Relying only upon approved techniques cannot meet these needs (hence the need for improvisation) while meeting policy requirements. In effect, a policy of this type forces officers to violate their policies in order to meet their immediate real-world defense and suspect control needs.

If the agency requires a technique to be used, it expects to see that method employed. This is not only a dramatic misunderstanding of the purpose of training, but a belief that fighting is solved in an efficient and orderly manner with no input from the suspect. The reality is that all training is merely a suggested method of resolution, and cannot be expected to be taken as a whole from the training floor and successfully placed wholesale into a combatives situation where the suspect is not a willing participant in the arrest. Any situation where the suspect does not cooperate will almost universally result in any particular technique failing. As long as an officer employs force reasonably, or employs an alternative method safely, there is no inherent liability, even if a subject is injured—unless the agency creates that liability by requiring adherence to a rigid technical system by its policy or practice.

Rather than looking at the method the officer employed as being “wrong,” it would be more useful and would follow present legal guidelines to evaluate the context of the circumstances presenting themselves to the officer at that moment. It is not a question of which hand was cuffed first and how, but, rather, the inquiry should be, “Regardless of the subject’s injuries, if any, were the officer’s actions and force responses justified by the reasonable perception by the officer of the suspect’s behavior and actions in light of the circumstances known to the officer at the time?”

Vendors Can Create Liability for Your Agency--If You Let Them

It cannot be argued that vendors add their expertise to law enforcement's ability to do their jobs well and within the standards of proper conduct. Someone must teach and train officers in the various and myriad skill and knowledge domains required today to safely and competently navigate through the requirements of law, policy, and expectations of professional behavior. Those who make their living by training or supplying other services and products to law enforcement are generally upstanding individuals who are attempting to benefit both officers and the citizens they serve. The problem begins when individuals devise a method of ensuring their income that is less-than-ethical. Making a living by providing a service is one thing. Coercion through unfounded fear is another

Many vendors who provide certifying systems to law enforcement state that failing to use their approved techniques will result in their not being able to “defend” a particular officer’s actions. They say that only those incidents comporting with what the vendor declares to be in-line with its program can be defended. Should the vendor’s technique fail because it was not properly executed (and for those vendors, any failure in the street is always attributed to “officer error”), or the officer simply improvises because he cannot remember how to do some complicated technique (which applies to every officer in a fight), or chooses to do something he made up on the spot, the vendor will not “defend” the agency in its litigation.

At least one vendor has stated that they would make themselves available to plaintiffs as experts should their client agency’s officers fail to properly use their techniques. The impression provided to the interested observer is that the officer and agency will be left hanging in court to twist in the wind when the vendor abandons them. Command staff and officers often truly believe, and many vendors promote the belief, that to prevent being successfully sued, you must have the vendor on your side.

Nothing is further from the truth. Your officers will either act reasonably and prove their proper conduct, thus avoiding civil liability, or they will be liable to the plaintiff for their actions. Their liability will not rest in the quality or type of technique they choose unless the agency creates that liability through policy. It will, instead, hinge on the duration and type of force based on the circumstances known to them at the time. Having a vendor’s representative as an expert witness may or may not be beneficial, but, in and of itself, will rarely, if ever, make or break your case.

Conclusion

The question of liability in any force response is well-settled: an officer may respond with objectively reasonable force based on the totality of the circumstances known to the officer at the time of the force response. This evaluation method stands regardless of the method or force technique an officer chooses or is forced to employ. Force cannot be excessive or improper based simply upon any technique, nor can increased liability result as a result of not properly employing a defensive tactics technique when the circumstances permit its attempt. In fact, there is no liability created simply because a vendor states a particular technique should have been used instead of the method actually employed by the officer.

Agencies can create a climate where liability can easily result by publishing an ill-considered policy of requiring officers to employ a particular technique as trained. This creates a situation where failure to use an “approved technique” becomes a policy violation. This creates tort liability in state courts. It also results in disciplinary actions even in those situations where an officer must improvise due to system failures that did not address that particular circumstance. This discipline will be capitalized upon by plaintiffs in federal court when the fact that the officer was disciplined will be used as leverage in settlement conferences to unnecessarily increase the value of the case.

Vendors should never be allowed to dictate policy to an agency. Vendors have a vested interest in maintaining the agency as a client. Beware of thinly veiled threats of de-certifying instructors should they fail to satisfy the vendor’s requirements, failing to testify should officers use non-trained techniques or methods of arrest and defense that are not approved, and of the creation of extra liability should you and your officers not adhere to their program. This is simply a form of blackmail in order to secure an income stream for the vendor, and is unethical. Vendors and their programs should support an agency’s policy, and while consultants may assist with policy development, it is always the policy-maker’s responsibility to provide a reasonable policy that protects all involved parties (the citizens, officers, and jurisdiction), not the vendor.

“Approved techniques” versus reasonable force response. Hands down, agencies should opt for policies requiring their officers to act reasonably in all circumstances. Training in force skill domains should be looked at as guidelines for problem-solving rather than as hard and fast techniques by which officers must abide. The phrase, “approved technique” should be stricken from the vocabulary of all police administrators, policies, regulations, and police trainers (as well as vendors). While training standardizes behavior, officers must have the flexibility to respond to suspect resistance and violent assault, as well as changing trends in the street without having to fear inadvertent policy violations as a result of their surviving an incident.

In the real world of law enforcement, there is no such thing as an approved technique. Your policy and practice should require reasonable (and, if required, necessary) force responses from your officers. Forget what your vendors tell you. If you believe your officers are qualified to instruct, don’t send them to re-certification unless you believe they can use the update—your agency actually certifies that someone is qualified to instruct every time one of your officers formally instructs an officer. If you believe your officer was reasonable in his force response, regardless of what technique he used, then reward him with commendations.

Until police administrators take back their policy responsibilities, they will be controlled by the false fear of increased litigation and liability. The Double-L’s are real in many areas of police work, but are mainly manufactured when it comes to anything approaching an “approved technique. A “required technique ” is not to law enforcement’s benefit. A hundred arrests of resisting suspects will require one-hundred different solutions. Flexibility within a reasonable force response is the most realistic and valuable expectation and administrator can have. The best and most practical standard for evaluating your officers’ force responses lies in Scott and Graham. It is the law of the land for a reason, and it is a doggone good standard by which to evaluate your officer’s actions.

As an officer, you are given the challenging responsibility of employing force against citizens and others in the name of the people of your jurisdiction. The US Constitution and federal laws require the “objectively reasonable” seizure of a person by any agent of the government in the enforcement of laws and the keeping of the peace. State constitutions and laws require essentially the same reasonableness in police efforts in interacting with citizens. How officers conduct themselves in arrest situations where force is compelled by the suspect’s behavior is a subject of great importance. The issue of providing a reasonable warning to the subject prior to any force response, with exceptions, is part of that reasonableness.

The federal courts in recent years have enthusiastically taken up this topic and are enforcing the need to warn if it is reasonable to do so. Providing a threatening, violent, and/or armed individual with a warning prior to responding with a force tool can decrease the likelihood of injury or death to the subject. It is also critical to being able to defend that force response in later inquiries about the reasonableness of your actions and decision-making.

Law enforcement agency instructors, as a whole, have become very successful in training their officers to warn subjects of an impending force response, deadly or otherwise. In fact, they have become so successful that their officers tend to attempt to warn subjects even when it is dangerous—and therefore, unnecessary—to do so. Recognizing the difference and being able to explain your reasoning to your administration, the Prosecutor, and to a jury (civil or criminal)—why you either gave the warning or did not—may have a huge outcome on the outcome of post-force response proceedings. The concept of warning prior to employing any force tool—non-lethal, less-lethal, and deadly force—seems to be widely misunderstood by many police trainers, and, subsequently, their officers.

This misunderstanding is seen in the form of a blanket requirement by some instructors, and even in some agency policies, to universally require a warning prior to every force response, regardless of the circumstance confronting an officer. One agency has even taken this beyond the extreme: recently, a firearms instructor proudly proclaimed that his agency had initiated the “ultimate liability prevention program” by requiring officers to continuously warn the suspect as they were shooting (“Police! Drop your weapon…bang!...Get on…bang…the ground!…bang…Drop your…bang…weapon…”). He was less enthusiastic and a more than a bit offended when, instead of wholehearted praise and welcome, his pronouncement that all agencies should adopt this liability prevention practice was met with just a few of the following arguments:

This is a dangerous practice. Some shooting incidents require a warning, whereas others do not. There are situations where immediately shooting a suspect without warning may be the safest method of legally resolving the incident without further loss of life or injury. This would include hostage-situations, armed robberies in-progress, assaults-with-a-deadly-weapon in-progress, etc.

Universal argument? If this is a universal requirement, will a SWAT marksman be required to warn an imminent Threat before taking a surgical shot?

This is likely to lead to a decrease of hits, more rounds expended per shooting, with corresponding officer injuries or death, as well as increased civil liability. If, for argument, the national average of police bullets hitting suspects is 30%, is it likely that shouting warnings while shooting at an armed suspect who is shooting or about to shoot at an officer is going to lead to an increase in the rate of hits, the same hit rate, or fewer hits on threat? Requiring an officer to shoot and hit a suspect while shouting at the suspect is more likely to decrease the ability of the officer to hit the suspect who needs to be shot to prevent injury to the officer and/or others.

How is a suspect supposed to hear what the officer is saying? Gunfire is loud, especially when it is directed at the individual who is supposed to be hearing these shouted commands. If shouting while firing is just for the witnesses, how does that satisfy the spirit of the need to warn the suspect? Additionally, the attentional load of the suspect is likely high as well, and it is unlikely that any attention whatsoever will be delegated to listening to the officer shouting while firing.

This is likely to lead to more liability rather than less. This policy requires officers to shout the warning as they are shooting. It is a policy intended to protect the suspect and gain their compliance more quickly, thereby reducing the number of rounds they are hit with, and lessening the likelihood of multiple serious injuries. Because the policy is in place to protect the subject, it creates a duty that is owed to the offender. Failing to perform that duty creates a negligence issue to be solved through tort litigation. This forces a question: Is an officer who is in reasonable fear of imminent or immediate danger of death or serious bodily injury likely to think of: A) policy requirements requiring him/her to simultaneously shoot and shout warnings, or, B) shooting and hitting the Threat until the suspect ceases to be a threat to the officer’s life? At this point, the officer who reacts to the threat and is so alarmed and frightened by the suspect’s threat to the officer’s life and either couldn’t or didn’t think about yelling while shooting is now subject to: A) administrative liability and is disciplined for a policy violation, and/or B) subject to civil liability in a state negligence tort action for policy violations, and/or C) an increased perception by a federal civil jury that the officer did not comply with training and policy, creating a tipping point in their verdict against the officer for shooting the subject.

Creating requirements that might work in a perfect world with perfectly aware officers who are perfectly in tune with the situation is foolish. Officers tend to be average human beings who react in a variety of ways to the act of someone attempting to murder them. Laws, policies, and training on warnings must reflect the reality officers work in. This includes a wide spectrum of events where the possibility of harm varies as well from little to extreme.

All forms of force tools require at least some type of warning, if feasible, prior to employing them. This includes OC spray, Tasers and other electronic weapons, impact weapons (including kinetic munitions), police service dogs, and, of course, firearms. It is, however, the “if feasible” part that seems to be the issue. What does the feasibility of a warning actually mean?

When is There a Requirement to Warn?

There is a definite need to warn subjects if time and circumstance permit prior to employing police force tools. Warning a subject, when it is feasible, is both humane and may preclude the need to respond with force. The following are a few examples of the language of one of the most restrictive (in terms of police actions) federal circuits (the 9th Circuit) on the subject of the need to warn an offender prior to responding with force:

“Here, it was feasible to give a warning that the use of force was imminent if Bryan did not comply.” (Bryan v. McPherson, 590 F. 3d 767, Court of Appeals, 9th Circuit 2009).

“We do not hold, however, that warnings are required whenever less than deadly force is employed. Rather, we simply determine that such warnings should be given, when feasible, if the use of force may result in serious injury, and that the giving of a warning or the failure to do so is a factor to be considered in applying the Graham balancing test. In the present case, the desirability and feasibility of a warning are obvious” (Deorle v. Rutherford, 272 F. 3d 1272, Court of Appeals, 9th Circuit 2001).

The US Supreme Court in Tennessee v. Garner, 471 U.S. 1; 105 S. Ct. 1694 (1985), when addressing the issue of shooting a fleeing suspect, stated: “Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.”

The common link in each of these cases is the phrase, “if feasible.” “Feasible” is defined as “capable of being done with the means at hand and circumstances as they are” (http://wordnet.princeton.edu/).

The 10th Circuit explained that "feasible" and "practicable" are fundamentally synonymous: “Since Congress did not define or otherwise explain the meaning of the facially ambiguous phrase "…practicable" within the statute, we assume Congress intended the words to be given their ordinary meaning, which we may discover through the use of dictionaries. ‘Practicable is...that which is performable, feasible, [or] possible...’ Black's Law Dictionary 1172 (6th ed.1991); see also Webster's Ninth New Collegiate Dictionary 923 (defining ‘practicable’ as that which is ‘possible to practice or perform: feasible’)” (Biodiversity Legal Foundation v. Babbitt, 146 F.3d 1249, 10th Circuit, 1998).

Therefore, officers must warn prior to responding with force to the offender’s behavior when the officer believes it is reasonable and the situation safely permits a warning given the totality of the circumstances known to the officer at the time. Whether or not an event was rapidly evolving in circumstances that are tense, threatening, and/or out of control will determine if the officer was able to provide a warning.

The research into the “attentional load” of a human being definitively demonstrates that we have only so much ability to focus, and that all attention is serial in nature. When presented with multiple attention requirements, humans are able to focus on each issue in turn rather than being globally aware of all of the issues at once. When responding to an imminent threat, an officer who is required to fire and shout warnings must minimally concentrate individually and serially on the threatening actions of the offender, tracking the suspect’s target area, the complicated act of shooting (and hitting the imminent Threat), shouting warnings, avoiding being shot, realizing the subject is falling and no longer a threat—or remains a threat, the presence of unarmed civilians who may be near the line of fire, other officers who may be in the line of fire, other officers who may be firing past the officer, etc.

Each component requiring focus affects up attentional capacity, and, like a computer’s RAM, once it is filled, there is no more room for more information. Each component can only be separately and consecutively focused upon if the officer can afford to pay attention to that specific detail in the midst of a life-or-death response to someone attempting to murder him. Those specific areas of focus most related to surviving will be given priority to the exclusion of other “nice to have” information--attentional capacity decreases as the perception of threat increases. Attentional resources will be devoted only to those skills and areas that are necessary at this moment to survive. The mere thought of warning a subject who is now an imminent threat of violence, serious bodily injury, and/or death may be well beyond the capability of a particular officer in a particular situation at that particular time.

This time requirement also demands the likelihood of the force tool effectively stopping the threatening behavior in time to prevent harm:

OC spray: The spray must be delivered from the canister to the subject’s face and mucous membranes. There is a delay from the time it hits the offender until the maximum effect of the substance is achieved. The effectiveness of OC spray varies widely, however, and is affected by the mental state of the subject (people who are mentally ill, under the influence of various stimulants or hallucinogens, or in a rage often are lightly affected, or demonstrate none of the expected effects). Its effectiveness and “stopping power” cannot be predicted.

Taser: The officer’s trigger finger must press the trigger, the probes must be expelled, and both probes must hit the subject to complete an electrical circuit with a sufficient spread to create neuromuscular disruption. The effectiveness of Tasers are well-known. However, misses with one of the two probes are common enough that it must be factored into the consideration of whether or not the subject can safely be warned or not given the time available to the officer. Additionally, there are many cases where the mentally ill and those who are under the influence of certain drugs seem to be partially or wholly immune to the effects of the Taser energy.

Hand-held impact weapon (baton): While the baton can be a very effective force tool, the commonly taught “Green-Yellow-Red Zone” targeting method is particularly ineffective (it is actually a product liability strategy rather than an attempt to satisfy either legal or officer safety requirements). Because the impact weapon is employed properly as a means of defense and control of an aggressive, violent subject, it must be used to stop and disable the violent subject by targeting the bony surfaces of the body to create maximum pain. Because the only effective targets are bony surfaces of the body, there is a possibility of a strike breaking a bone. However, people who are mentally ill, under the influence of various stimulants or hallucinogens, or in a rage often exhibit a level of tolerance rendering them immune from pain--including that of broken bones.

Kinetic munitions: Delivered from a less-lethal shotgun or a 37mm delivery system, this force options fires a diverse assortment of rounds. Best known is the 12 gauge fabric covered bag commonly filled with shot at low velocity in order to deliver a kinetic blow at a safer distance from the suspect. Foam rounds from the 37mm weapon are extremely effective as well. Its impact is similar to a well delivered baton strike. Its success depends on either of the following results: 1) the suspect believes he has been shot by a firearm, and believing this, thinks that people who are shot are supposed to fall down, so he falls; 2) the suspect tires of being struck with a number of kinetic munition projectiles, and complies with orders. However, people who are mentally ill, under the influence of various stimulants or hallucinogens, or in a rage often absorb tremendous numbers of projectiles with little immediate effect (with resulting spectacular bruising that is later used to dazzle and horrify civil jurors).

Firearms: The ability to stop any particular human being with a bullet, or a number of bullets, is completely unpredictable. Absent a bullet strike through the brain or spine, the human body can absorb an unbelievable number of rounds and continue to function in a threatening manner until succumbing to organ failure and/or exsanguinations some time later. While many individuals are stopped after being shot once (or by simply being shot at), others continue to be a threat until they have been hit numerous times. Simply being shot is not a predictor of compliance or overcoming resistance. People who have been hit with multiple “fatal” rounds have continued in their assaults and have seriously injured and murdered several people before succumbing to their wounds (e.g., the April 11, 1986 FBI Miami shootout). The bullet must be fired, penetrate the suspect’s vital structures, and either cause the offender to psychologically give up, or create a physiological failure of the body to continue. This takes time that the situation (determined by the suspect) must give to the officer.

This reality—the time it takes to observe and orient to the threat, decide to respond with reasonable force, deliver the force tool, followed by the time it takes for the offender to either realize the danger to his health and well-being and stop his threatening action out of self-preservation, or for the tool to overwhelm the subject physically and cause the behavior to cease, added to the time for the officer to perceive whether or not that particular force response was successful or not—requires a sufficient length of time be available to the officer before the perceived harm can occur, and partly determines whether or not a warning may be feasible.

Distance Equals Time, and Affects the Ability to Warn

Distance and time are components of each other in tactical doctrine. Time considerations are often a function of how much distance is involved and the rate of movement of the involved-parties (time = distance/speed). It stands to reason that the closer you are to the Threat, the less time you have to react.

Reaction-response time is built into this requirement to warn. This involves the officer having the time to give a command, which, in turn, requires the offender to hear the command, process the required action, and respond to the command. This then requires the officer to have the time to be able to perceive and orient to whether or not there is a change in the suspect’s actions or level of compliance, and to then act on the offender’s actions in time to prevent or respond to the Threat. This takes time and is not in any way instantaneous.

In the real-world of policing, officers must often place themselves between civilian innocents and aggressing suspects at distances they, themselves, would admit were unsafe but feel is necessary for the protection of others. Since suspects always control the speed, evolution, and location of a call, you may have no choice but to get closer in proximity than you would otherwise choose. This will affect the time in which you have to react to sudden assault, as well as the time you have to warn the subject prior to responding with force.

In this case, given the threat level of the offender as well as the proximity of the event, the need to warn is dependent upon the offender’s behavior. If the situation is static and a plan is in place to reasonably compel compliance through force, and it can be safely accomplished, give a warning. If the situation is dynamic, is threatening to become violent, or violence is imminent, and the officer is in proximity to the suspect, a warning is less likely to be feasible, and is therefore less likely to be required.

Safety Factors in Providing a Warning

The safety of the officer and others may also be a factor in whether or not a warning is required. As a dynamic, rapidly evolving, and/or highly threatening event unfolds, a warning may no longer be feasible. Just a few examples where a warning is not necessary might be:

An offender suddenly reaches down to the floorboard of his vehicle as you belatedly see a handgun.

A suspect makes a grabbing, pulling motion from his waistband.

An offender is in the midst of an armed robbery using some type of deadly weapon.

An offender with a knife or stabbing instrument is charging or lunging at you.

An armed, apparently violent subject is about to enter/exit a doorway leading to an area where unarmed civilians are likely to be present.

An apparently unarmed suspect charges you.

The suspect is initiating or is in the midst of a criminal, violent assault.

If the officer believes that she or another individual is in imminent or actual danger of assault, serious physical injury, or death, a warning is likely not required before responding with force.

Additionally, if a warning is likely to create the ability of a suspect to develop or initiate a countermeasure, it is unlikely that a warning is required. For example, an officer who is about to go hands-on with a resistive subject is not likely going to provide that individual with a warning, giving up all hope of surprise. This will simply turn what may have been a simple takedown into a brawl with a higher likelihood of injuries to both the officer and the suspect. Likewise, a violent suspect who is standing near the open door from which he just emerged may simply step inside upon being warned and close the door, preventing the officer from tasing him, delaying and complicating apprehension efforts.

Provide a Warning, If Feasible, Regardless of the Suspect’s Condition

Some officers in the past, faced with a mentally ill individual who is in crisis, or a suspect who is under-the-influence, have reasoned that the subject is not only not complying with commands, but is apparently unable to understand or comprehend anything, negating the need to warn. This is a flawed reasoning that will create no end of problems in post-force proceedings.

Regardless of your perception of whether or not an individual comprehend the warning, either because of mental disability, mental capacity, their state of sobriety, or apparent language barriers, a warning, if feasible, should be given. In the case of a language barrier, a uniformed police officer shouting commands while pointing a police weapon at a person is a universal signal to stop whatever behavior that person is presently doing. Giving a warning if the suspect’s behavior and time permits helps the jury understand that you are attempting to resolve the incident without injuring the subject.

Articulating Your Reasoning

Whether or not you warn an offender prior to responding with a force tool, you will be required to justify your actions, or lack of actions. Properly acting but failing to sufficiently articulate what you did and why it was reasonable is a common problem in police cases where the officers are found liable for their force conduct. Everything you do or do not do must be accounted for in your reporting of the incident. While the tricks that criminal defense and plaintiffs’ attorneys play for the jury (“If it was so important, why didn’t you include it in your initial report?”) are often just that, tricks that are easily seen through by any rational juror, your reality is that there are key components to every force incident that must be addressed in your reporting and testimony that explain your “state of mind.” All force by police is evaluated on your understanding of the totality of the circumstances—20/20 hindsight is not permitted. All factors in this evaluation are based on what you knew then, not what is known following the force incident. Failing to address in your report the facts you knew at the time creates a very difficult defense in subsequent inquiries.

If the circumstances created by the offender forced you into proximity to the suspect—even when admittedly dangerously close—explain why you were forced to take that position. Your reasoning may include that others were endangered by the suspect’s actions. If the suspect then forces you to respond with force without the ability to provide a warning, it will be up to you to articulate the need to be in that position and as close to the threat as you were.

Until now, officers have not universally been trained to address the subject of warning as a requirement in the reporting of facts known to them at the time. The increasing focus of the courts on the topic of warnings by police prior to a force tool being employed demands that the prudent officer include it in the initial report of the incident.

If a warning was given, specifically document that in either your report and/or interview. Provide a direct or approximate quote of your commands and warning(s).

If a warning was not provided prior to the force response, explain why the suspect’s behavior and circumstances did not permit the feasibility of a warning. This would include the threat of the offender’s actions, the relative dynamism and rapidly evolving events driven by the suspect, as well as the safety issues involved in your decision.

Conclusion

“The safety interest in controlling the group increased further when the group was warned by police that a chemical irritant would be used if they did not move back from the area, and the group refused to comply. Jackson, who heard the warning, also chose to ignore the officers' orders, and instead began to directly interfere with Officer Davis' attempt to maintain order.” (Jackson v. City of Bremerton, 268 F. 3d 646, Court of Appeals, 9th Circuit 2001).

The courts are interested in the safety of all concerned, the public, the officer(s), and the offender. The courts also understand that officer safety is vital, and will provide a lot of leeway to officers when they can prove they reasonably perceived they were under actual or imminent assault. The courts also understand that an officer’s job is a difficult one, and that split-second judgments are made in circumstances that are dynamic, tense, uncertain, and rapidly evolving. There is no requirement for perfection by police officers—officers are permitted a wide spectrum of reasonable conduct.

Warnings, when feasible, are no longer optional. While the lack of a warning is not determinant to a finding of excessive force, it may well be a factor mitigating against you. The concept of the feasibility of providing a warning to a suspect whose behavior calls for some type of employment of a force tool to gain their compliance is contextual. The context is driven by the offender, with the officer adapting her tactics and force response accordingly.

There is a real-world requirement to warning that borders on being commonsensical. Training that an officer must always provide a warning is counter to common sense and to safety—and does not decrease the liability exposure to an officer or agency. Failing to train an officer to warn when given the opportunity to perhaps give the offender a chance to reconsider whether or not to comply is no longer excusable.

Bottom line:

Warn the subject prior to a force response if there is time and you can safely do it.

If it is not safe or there wasn’t time, respond with force per your training and your understanding of the context of the incident, and then explain why it wasn’t possible or safe given the totality of the circumstances you faced at the time.

As a law enforcement officer, you have a complex and very demanding profession. The job of enforcing the law grows in depth and breadth every year, requiring more of officers in their knowledge, reasoning, and judgment. Courts, legislatures, and changing public expectations create new challenges, new learning curves, and new obstacles for officers to adapt to and develop strategies to effectively meet these changes.

There are few areas of an officer’s duties that require more discernment and restraint than in responding with force during an arrest. The ability to read a situation, understand the broad range of human conflict from the subtle nuances of suspect pre-attack indicators to the unmistakable and extremely dire situation of a close-range gunfight, and then react quickly enough to make a difference is a product of training and experience. It is also a result of understanding the law and policy clearly enough to be free to use those guidelines effortlessly and without doubt.

“Force continuums” were adopted as an attempt to quickly bridge the knowledge gap between the new civilian recruit and the functioning police academy graduate. They were seen as a training shortcut, and easy method of training officers how to effectively select the force reasonable to the situation. Terms like “escalation of force” and “de-escalation” became commonly employed in explaining how and why an officer might respond to a suspect’s threat.

Plaintiffs and their police experts soon found the continuums to be of great value to their arguments that the officer either failed to meet standards, or failed to employ proper conduct because the officer failed to de-escalate early enough. They often point to the suspect’s behavior at the moment prior to the officer’s force response, fitting it into a category of “suspect actions” requiring a “lower force option,” while disregarding the totality of the facts known to the officer at the time, and upon which the officer based his or her actions. This confuses jurors, who look at this mechanical, very rigid appearing matrix, and can clearly see that the force employed for “that” suspect behavior was “not permitted.” Problematically, it also confuses officers, sometimes creating stammering explanations that “the continuum doesn’t really mean what it says.”

The trouble is, a force continuum, in every version and variation, does not deliver for law enforcement—or the public—as advertised. Every continuum often fails officers in their articulation of the circumstances in which they responded with force. And for each time an officer’s actions were justified through the matrix of the continuum, there is another where the evaluation of the reasonable response by an officer was subjectively or mistakenly found to have failed the force continuum’s "requirements."

Force continuums, in policy and in training, should be abandoned. A continuum is simply an attempt to place a mechanical explanation on a situation that defies stultified, rigid application in typically dynamic, fluid situations. Additionally, officers require a different type of problem-solving strategy to survive and meet the challenges of the street, something that enhances and develops their ability to quickly reason through and articulate their choices based upon the law. A static matrix where simplified suspect behaviors are stair-stepped into categories of force fails officers in a tense, uncertain, and rapidly evolving incident, and underestimates their ability to discern an emerging situation, recognize the force reasonable to overcome the resistance, respond reasonably, and then to articulate the basis of their force response.

STANDARDS IN FORCE

Unique in all of human history, individual officers are responsible for not only documenting the circumstances surrounding any police force response, but also in being required to specifically articulate those actions based on an “objective reasonableness standard.” This standard was codified by the US Supreme Court stated in Graham v. Connor (1989). The Graham court understood that an officer’s force response is not capable of mechanical definition, but must be articulated based on the totality of the circumstances known to the officer at the time. It was reiterated by the Supreme Court in Scott v. Harris (2007). Various non-specific guidelines have been suggested by the court, including, but not limited to, the severity of the crime committed by the suspect at issue (not necessarily the crime for which the offender is being arrested, but the crime to which the officer is immediately responding), the immediate threat of the suspect to the officer and others (the suspect is bigger, stronger, armed, apparently trained, and/or the officer’s fatigue and injury status was a factor), and the active resistance of the offender to resist arrest or attempt to flee (this is the level of intensity and how desperately the suspect was fighting with the officer).

All of this is mixed together to arrive at a “reasonable officer standard.” This standard is generally defined as, “Would another officer, with like or similar training and experience, given the same circumstances, respond with the same force or use similar judgment.” It requires the officer to justify his or her actions based on their training, based on their experience, and to a standard to which another officer would recognize and react. It does not require the “best” solution to the problem facing the officer. Instead; it simply requires the officer meet a wide range of objectively reasonable conduct.

Every force response is based only upon the totality of the facts known to the officer at the time, without the clarity of 20/20 hindsight. The evaluation must take into account considerations for split-second decisions made in tense, uncertain, and rapidly evolving circumstances. Therefore, an officer may be mistaken about the facts of a case, but still be an objectively reasonable officer.

The Force Continuum is a mechanical model for the application of police force that was specifically rejected by the Scott and Graham courts and subsequent federal circuit court rulings. Force Continuums were developed pre-Graham as a method to explain to officers how and when to respond with force to a suspect’s threat. It seemed simple at the time, and was apparently easier to apply than the old Glick standard. The trouble is, times have passed it by, but like computer SPAM, we just can’t seem to get rid of it.

THE “FORCE CONTINUUM”

Essentially, every force continuum contains three components: Force levels or options, labels of suspect resistance, and “escalation/de-escalation” requirements. Only one of these components really has any validity in the real world where an officer’s force response is measured against Graham’s standards of evaluation.

Force levels or options: Force levels are simply those actions by officers that physically affect a subject’s ability and/or willingness to resist or flee. Each force option, at a given duration and effort, will result in an expected level of injury or pain. For example, OC, or pepper spray generally causes acute pain, temporary blinding, and breathing difficulty for a limited period of time, but is without the likelihood of lasting or permanent injury. A wrist hold or limb restraint is generally a “pain compliance” effort, relying upon pain to gain cooperation, yet it also can cause long-term or even permanent injury to the wrist, elbow, or arm—usually resulting from the intensity of a suspect’s resistance. A Taser will safely create compliance through disruption of the skeletal musculature’s electrical messages. It is non-lethal, although secondary injuries from falling are common enough. An impact weapon, or baton, properly delivered, is expected to cause injury, ranging from a contusion to a bone fracture. Deadly force, of course, is force likely to cause death or serious physical injury.

Problems with “force options.” A significant problem with the Force Continuum is that areas of police conduct are included under the label of “force.” “Officer Presence” and “Oral Commands” are listed as “the lowest levels of force.” Some continuums are now improperly including the pointing a firearm at an offender by the officer within the force options. What’s the problem? An officer showing up on the scene, speaking to or yelling at a subject, and even pointing a firearm at a subject is not force. Force is an intentional action by an officer that physically affects the well-being or movement of a person. The officer who commands a subject to stop, turn around, take his hands out of his pockets, and to step to the patrol car has created a “seizure” under the 4th Amendment the moment the subject complied with the commands—but has not employed “force.”

But if there is no force employed in these acts, why, Plaintiffs ask, are they included on a “force continuum?” This confusion creates problems for both officers and jurors. For example, most continuums list “Officer Presence” and “Voice Commands” as part of their “force options.” I have routinely asked in a training event, “Is officer presence a force option?” Officers regularly--and mistakenly--answer, “Yes.” When asked what permitted that officer to “use force” absent any suspect resistance or failure to obey the officer’s commands, these officers often respond with blank stares. Some astute officer will sometimes come to the officer’s rescue, saying, “There was no use of force. Presence is not a ‘use of force.’” This misunderstanding of what is and is not “force” allows the Plaintiff’s attorney and his/her expert to state that it is the agency’s policy or training doctrine listing “officer presence” as a force option in the continuum, and to ask the officer, his or her police witnesses, and his experts, “Why now, when this officer is now in ‘trouble,’ is the policy's force continuum’s ‘force options’ not really force?”

Lawyer games? You bet. Slimy? Well, that is a matter of opinion--the Plaintiffs' lawyers would say it is not, and that it is law enforcement's adoption of this model that creates the opening for them. In any case, it is permitted in court. But legal games are another unpleasant part of the job you signed up for. But when some jurors believe that officers routinely lie under oath because of deliberate distortion and indoctrination by Hollywood, television, and the media, it doesn’t take much imagination on the juror’s part to look at the “force continuum,” read the heading, “force options,” and conclude the officer or police defending these actions are spinning it to their own ends. While it isn’t true and the officers testifying are simply telling the truth, Force Continuums present this opportunity for skilled attorneys to create the appearance of impropriety or convenient definitions that are fluid according to the needs of the defendant officer(s).

Suspect resistance: Rather than take the excellent and ultimately practical formulas in Scott and Graham and apply them to the question of when and how to respond with force, the force continuum wrongly attempts to “simplify” the concept of suspect resistance into distinct, definable categories. For example, a suspect who is presently simply pulling his hands away from the arresting officer, and is not presently attempting to harm the officer is exhibiting “Defensive Resistance,” and therefore may be subject to the corresponding force option on the chart. However, a suspect who is presently physically assaulting the officer is exhibiting “Active Aggression,” permitting the corresponding “higher level of force” to be employed.

Problems with “Suspect resistance” labels: The problem is that neither of these “categories of resistance” provide a clue as to the totality of the facts known to the officer at the time. This labeling excludes many factors that must be considered by the officer and any post-incident evaluation of the officer’s force response. Distinct, sterile labels cannot describe the officer’s state-of-mind—something which is crucial to any objective and comprehensive evaluation. That is why the Supreme Court required officers to describe the totality of the facts known to the officer at the time, as well as what the suspect was doing at the time of the force response. Both are vital in the officer’s articulation of a force response. Labels as offered by a force continuum are not inclusive of the facts and circumstances, and are often grossly misleading.

More accurate labels might be “violent,” “resisting,” “eggressive resistance,” and “combative.” None of these labels would permit or call for a specific force response without an explanation by the officer of all of the facts known to the officer at the time of the force response. When the officer describes the actual behavior of the suspect combined with all of the facts known at the time, it now becomes clearly reasonable that the officer responded with empty hand limb restraints, OC, Conducted Energy Weapons, impact weapons, and/or deadly force. It is only through such articulation that reasonableness may be determined.

Escalation and de-escalation requirements: Escalation of force theory simply requires that officers begin with the “lowest-levels” of force (non- or least injurious) and work their way up to something that effectively restrains or overcomes the suspect’s actions or resistance (more injurious). This requires officers to “experiment” with force. In one instance, a city’s expert witness, arguing for the termination of the officer during an arbitration hearing, testified that even if the suspect is capable of causing serious bodily injury or death, the officer is still required to use less-lethal force if she can. There must be an escalation of force, “reacting to what is unsuccessful. If this level of force is not successful, move to the next one.”

Problems with “escalation/de-escalation”: This is a gross misunderstanding and clearly not called for in law. It is a clear misrepresentation of what is required of officers struggling to take a suspect into custody. In the middle of a fight with an extremely motivated, unsearched individual, an armed police officer cannot afford (or be expected) to experiment with force as called for by a continuum. This would amount to playing a dangerous game with the suspect—the officer attempting to use the lowest level possible while the offender is resorting to whatever means he intends to employ in order to escape. Instead, Scott permits officers to respond with objectively reasonable force (force option plus duration) to overcome the reasonably perceived threat or resistance of the suspect (from the officer’s reasonable perception based on the totality of the facts and circumstances she knew at the time).

Of the three components making up the Force Continuum, only force options are meaningful in the real world recognized by the courts.

TEACHING OFFICERS TO REASONABLY RESPOND WITH FORCE

Many police trainers react with despair when the subject of abandoning the Force Continuum is broached. “How in the world can I teach officers to respond with force?” is often their question.

The use of the Force Continuum, a mechanical standard, is a lazy way of teaching officers when to respond with force. It attempts to simply take a response off the shelf and plug it into a category of assault or resistance. All very neat and tidy, but the threatening safety problems officers are forced to respond to in the real world are not. Instead, officers must be given permission to evaluate the situation and then reasonably respond.

This is done by first teaching them the law and their policy, and then holding them accountable for justifying their actions while in training. Then they are taught about force options and the specific expected injuries as a result of duration and intensity of that force response. After giving examples and possible solutions to common force problems, students or recruits are then put into various problems during defensive tactics and officer safety training. They are then permitted to find their own force solutions, and then must justify the force they employed. By using the law (Scott, Graham, Garner, and state law) and agency policy as the basis of justifying their force response, the officer learns the bounds of force conduct vis-à-vis suspect resistance and assault.

Is it more difficult? Yes--that's why the continuums were adopted in the first place. It requires the trainer to be conversant (rather than just “knowledgeable”) with the laws of force. It requires the trainer to articulate the standard of evaluation as required by the reasonable officer standard per Scott. It requires the trainer to be able to discern the totality of the circumstances as a basis of that force response, and not just the present circumstances apparent to the officer at the time. It also starts the process of requiring the officer to begin justifying his or her actions per the law, within the law.

As a result of this greater effort, officers are able to discern the complexity of their force responses. The capability for nuance is created, and better articulation of their decision-making is possible. There are no downsides to this change in creating an officer who has deeper knowledge and understanding of the permissions and the limits to the force response.

CONCLUSION

The force continuum, as stated earlier, is exactly the type of mechanistic application and evaluation of force rejected by Scott and Graham. Essentially it calls for the officer to label what the suspect is doing at this moment, and experiment with matching the lowest level of force to that labeled suspect behavior. If that force option is not successful, the officer is to escalate or progress to the next force option, experimenting with it until the officer finally progresses to a force level that is successful. This is unsafe in the real world, and the US Supreme Court was wise enough to repeatedly recognize that experimenting with force is foolhardy when facing the real-world threats officers are sworn to respond to.

The force continuum is a misleading representation that is not valid for any aspect of law enforcement. Adopted in the early 1980s by plaintiffs experts, law enforcement naively adopted it as a means of attempting to explain, and then train their officers in the reasonable force response. Since the early 90's, it is slowly but steadily being recognized, and as advocated by leading police policy authorities, trainers, and expert witnesses, that the force continuum has no value in teaching, policy, or explanation of an officer’s actions. It only serves to mislead a jury and the public in what the officer “should have done” according some expert who claims authority in such matters, without taking the officer’s state of mind into account.

An appreciation for the realistic effects and likely outcomes of various methods of restraint and force must be apprehended by any evaluator for a fair evaluation of any officer’s efforts. Responding with force, articulating force, and evaluating the police force response is best served through the law as it is written and interpreted by the courts. There is a reason that after all these years, the force continuum has not been accepted by the courts and written into law. It does not meet the standards by which officers are judged. The sooner law enforcement recognizes this, and removes this failed experiment from training and policy, the better officers, their agencies, and the public they serve will be.